O-I Operations (Australia) Pty Ltd

[2020] FWCA 1375

[2020] FWCA 1375

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

O-I Operations (Australia) Pty Ltd
(AG2020/63)

O-I ADELAIDE (GLASSWORKERS) ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 13 MARCH 2020

Application for approval of the O-I Adelaide (Glassworkers) Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the O-I Adelaide (Glassworkers) Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by O-I Operations (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] The employer issued the Notice of Employee Representational Rights (Notice) to employees 17 days after the notification time. Section 173(3) of the Act states the employer must give the Notice as soon as practicable, and no later than 14 days after the notification time for the agreement. The employer submits that all employees covered by the Agreement were aware of their representational rights with a high union membership amongst the workforce. The employer submits that employees who were not represented by the union were spoken to about their representational rights and ongoing communication was sent to employees before and after bargaining meetings. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.173(3). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.4.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and in accordance with s.54, will operate from 20 March 2020. The nominal expiry date of the Agreement is 14 February 2024.

COMMISSIONER

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